National Farmers Union Property & Cas. Co. v. Ronholm

• Decision Date: 09 October 1967
• Docket Number: No. 8318,8318
• Citation: 153 N.W.2d 322
• Court: North Dakota Supreme Court
• Parties: NATIONAL FARMERS UNION PROPERTY & CASUALTY COMPANY, a foreign corporation, Plaintiff and Respondent, v. Maynard D. RONHOLM and Dennis Ryan, Defendants, and Dennis Ryan, Defendant and Appellant.

Page 322

153 N.W.2d 322

NATIONAL FARMERS UNION PROPERTY & CASUALTY COMPANY, a foreign corporation, Plaintiff and Respondent, v. Maynard D. RONHOLM and Dennis Ryan, Defendants and Dennis Ryan, Defendant and Appellant.

No. 8318.

Supreme Court of North Dakota.

Oct. 9, 1967.

Syllabus by the Court

1. The permission required to bring an additional insured within the omnibus clause of an automobile insurance policy may be either express or implied.

2. Where an appeal is taken pursuant to § 28--27--32, N.D.C.C., and the appellant demands a trial anew, the findings of the trial court must be given appreciable weight by the Supreme Court, especially when based upon testimony of witnesses who appeared in person before the trial court.

3. In order to support an inference that one has the implied permission to use an automobile belonging to another, for his own pleasure and purposes, there must be evidence tending to show a course of conduct or practice known to the owner and acquiesced in by him, or by someone having authority to give permission.

4. The evidence in this case does not disclose a course of conduct from which permission to use the automobile may be implied.

Duffy & Haugland, Devils Lake, for appellant.

Letnes, Murray & Quigley, Grand Forks, for respondent.

KNUDSON, Judge.

This is an appeal from a declaratory judgment entered in favor of the respondent, National Farmers Union Property and Casualty Company, hereinafter referred to as respondent.

The facts are not essentially in dispute. Respondent is the liability insurer of Clarence N. Halvorson. The automobile insured by the respondent, a 1949 Ford sedan, was purchased by insured's son, Tyrone Halvorson, in 1961 but title was held in the name of his father. Clarence N. Halvorson is the named insured and Tyrone is listed as an additional driver (50%) on the application. The insurance policy contains a typical 'omnibus clause' or extended coverage clause, providing for extension of liability coverage to others than the named insured, in the following language:

PERSONS INSURED

The following are insureds under Part I:

(a) With respect to the owned automobile,

(1) the named insured and any resident of the same household,

(2) any other person using such automobile, provided the actual use thereof is with the permission of the named insured.

The insurance policy containing this clause was in force and effect at the time of the accident involving the 1949 Ford sedan.

Dennis Ryan and Maynard Ronholm lived in the village of Tolna, North Dakota. Tyrone lived with his parents on a farm near Tolna. Ronholm and Tyrone had attended North Dakota State University at Fargo during the school term of 1961--1962, and were otherwise socially acquainted. Tyrone had the automobile at North Dakota State University for the spring quarter of 1962. On two or three occasions he permitted Ronholm to use it. On these occasions Ronholm had specifically requested Tyrone's permission to use the automobile.

On June 9, 1962, the two boys, back in Tolna for the summer, journeyed to a nearby town where Tyrone purchased some beer. They then returned to Tolna and, at 10:30 p.m., went to Ronholm's home where Tyrone left the automobile in the yard with the keys in the ignition. Ronholm's parents were not at home. They were soon joined by other young people. At approximately midnight Tyrone left the Ronholm residence with a local girl in her automobile, and with another local boy and a girl from a neighboring town whom they were to take home.

Ronholm, after Tyrone left, drove the Halvorson automobile up to the main street of Tolna and parked it. There is some dispute as to whether he parked it at the curb or in the middle of the street. At any rate, he alighted from the automobile and stood near it talking to some other young people.

Tyrone soon drove up in the girl's car and talked to the group, at the same time noticing that his automobile had been moved from the Ronholm residence to the main street of Tolna. There is a dispute as to whether Tyrone saw or spoke to Ronholm. At the trial he testified that he did not see or speak to him at this time. He had signed a statement earlier to the effect that he had seen Ronholm near the automobile and that Ronholm had come over and talked to the girls who were with him. Such fact was brought out on cross-examination but Tyrone continued to assert an inability to remember having given or signed such a statement. In any event, he said nothing about the automobile and soon proceeded out of Tolna, intendint to return the other girl in the car to the neighboring town.

After his departure, Ronholm took the Halvorson automobile and drove to the Tolna ball diamond where he met and talked with Dennis Ryan. The latter got into the Halvorson vehicle and Ronholm proceeded to drive back uptown. A fog had settled in over the area some time after midnight, and while driving up the main street of Tolna Ronholm ran into a parked oil truck, causing severe injuries to Dennis Ryan.

Ryan commenced an action for damages for personal injuries against Ronholm alleging Ronholm was driving the Halvorson automobile with permission. Ronholm made a written demand upon the respondent insurance company to defend him in the action. After an investigation, the respondent determined that Ronholm did not have permission to use the automobile and was not covered under the omnibus clause of the policy issued by the respondent insurance company to Clarence N. Halvorson and, therefore, gave notice of disclaimer to Ronholm. The respondent brought this action seeking a judicial declaration that the defendant Ronholm was driving the automobile without permission and, therefore, they were not obligated under the omnibus clause to defend the action against him. The trial court held for the respondent, and Ryan appeals.

The sole issue is whether Ronholm had permission to drive the Halvorson vehicle. If he had such permission he would be included as an additional insured within the omnibus clause of the insurance policy issued by the respondent, and the latter would have the duty to defend him.

The permission required to bring an additional insured within the omnibus clause may be either express or implied. 7 Am.Jur.2d Automobile Insurance § 113 (1963), p. 425. See also, Stoll v. Hawkeye Cas. Co. of Des Moines, Iowa, 193 F.2d 255 (C.C.A. 8 1952); Sunshine Mutual Insurance Co. v. Mai, 169 F.Supp. 702 (N.D.1959), aff'd Peterson v. Sunshine Mutual Insurance Company, 273 F.2d 53 (8th Cir. 1959); Jurd v. Pacific Indemnity Company, 57 Cal.2d 699, 21 Cal.Rptr. 793, 371 P.2d 569; Straughan v. Asher, Mo.App., 372 S.W.2d 489; 7 Blashfield, Automobile Law and Practice, § 315.10 (1966).

It must be taken as established that Tyrone had express permission to use the automobile. The car had been purchased for Tyrone, but title was placed in the father's name. Tyrone had paid most of the purchase price of $150.00 and all of the gas, oil, and repairs when he used the automobile. Tyrone used the automobile at North Dakota State University during the spring quarter, and he used it on Saturday nights with the knowledge and consent of Clarence N. Halvorson. The record shows that Clarence N. Halvorson specifically told Tyrone that he might lend the automobile to Ronholm if such was necessary. On at least two occasions at North Dakota State University Tyrone had done so with the knowledge and approval of his father. He exercised such a degree of dominion and control over the automobile as to amount to ownership. From these facts, it is difficult to say otherwise than that Tyrone had express permission from Clarence N. Halvorson to use the automobile. Either as first permittee or as the real owner of the automobile he had the authority to grant permission to Ronholm to drive the automobile.

Having established that Tyrone had the authority to permit another to use the automobile, we must next determine whether Tyrone gave permission, either express or implied, to Ronholm to use the car. It is conceded by appellant that Ronholm did not have the express permission of either Clarence N. or Tyrone Halvorson to use the Halvorson vehicle on the night of the accident. Appellant contends, however, that the events of the night of the accident, coupled with the earlier course of conduct as to lending the automobile to Ronholm, showed an implied permission by Tyrone on this occasion. They cite as support for this contention 7 Am.Jur.2d Automobile Insurance § 113, which states:

It (implied permission) may be established by a showing of a course of conduct or relationship between the parties, including lack of objection to the use by the permittee which signifies acquiescence or consent of the insured.

See also, Sunshine Mutual Insurance Co. v. Mai, 169 F.Supp. 702 (N.D.1959) aff'd Peterson v. Sunshine Mutual Insurance Company, 273 F.2d 53 (8th Cir.1959); United Services Automobile Ass'n v. Preferred Acc. Ins. Co. of New York, 190 F.2d 404 (10th Cir.1951); State Farm Mut. Automobile Ins. Co. v. Cook, 186 Va. 658, 43 S.E.2d 863, 5 A.L.R.2d 594; Brochu v. Taylor, 223 Wis. 90, 269 N.W. 711; 7 Appleman, Insurance Law & Practice, § 4365 (1962).

Here, the court as the trier of the facts found that Ronholm did not have permission to use the car--that the evidence would not support an inference of implied consent to the use of the car. The appellant contends, however, that the facts are sufficient to show implied permission. On the evening of the accident Tyrone and Ronholm were engaged in a joint venture of fun and relaxation. This, without more, cannot be said to clothe Ronholm with authority to use the Halvorson automobile. In Manock v. Donley, N.D., 139 N.W.2d 391, and Kadrmas v. Mudna, N.D., 107 N.W.2d 346, the parties were jointly engaged in an evening of fun and refreshment. In neither of these cases did the court discuss the social relationship of the driver and first permittee arising out of the joint...